Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons.

• Author: Miller, Marc L.
• Position: Review

JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS. By Malcolm M. Feeley([dagger]) & Edward L. Rubin.([double dagger]) Cambridge University Press. 1998. xv + 490 pp. $69.95.

Malcolm Feeley and Edward Rubin's Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons theorizes that judges engage in judicial policy making when they identify an egregious social problem and perceive a solution, guided by a "coordinating idea." The book focuses on one detailed example of judicial policy making: the reform of America's prisons. In this review, Professor Marc L. Miller explains that Feeley and Rubin have written a study only of "hard" judicial policy making. Hard judicial policy making occurs when courts not only assert new rights or doctrines not closely linked to authoritative text--which is soft policy making--but also create and supervise detailed administrative remedies. Professor Miller argues that the hard judicial policy making in prison reform was a rare exception to judicial norms and practices of restraint. He then tests the Feeley and Rubin theory of judicial policy making against a dramatic counter-example: the general failure of courts to make policy for criminal defense counsel systems. Professor Miller argues that there is a close fit between the state of public defense in much of this country and the conditions Feeley and Rubin say should trigger hard judicial policy making. He describes cases from the Louisiana, Oklahoma, and Arizona supreme courts that have begun the critical task of reforming indigent defense systems. In each case, however, these progressive courts have shied away from hard policy making, and other courts have been reluctant to follow even their cautious first steps toward judicial reform of defense systems.

[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. -- Justice Hugo L. Black(1)

Judicial policy making begins with the perception of a problem and the identification of a goal. This is generally motivated by a moral imperative of some sort, an insistent belief that some observed condition violates a well-recognized, important social norm. -- Malcolm Feeley & Edward Rubin(2)

Judicial policy making has brought us Brown v. Board of Education,(3) Roe v. Wade,(4) the reform of prisons and psychiatric institutions, and a variety of criminal and commercial guidelines and rules. It also brought us Lochner v. New York(5) and a skeptical view of the neutrality of judges and their allegiance to such central principles of government as the separation of powers and the rule of law. How common is judicial policy making? How do courts design and implement policy? Is judicial policy making a good thing?

In Judicial Policy Making and the Modern State, Malcolm Feeley and Edward Rubin suggest that judicial policy making is quite common. They do not, however, make a convincing case for its prevalence, as that is not their principal goal. Instead, their main goal is to describe judicial policy making more completely than anyone has before, and to convince readers that not only is judicial policy making inevitable in our "modern administrative state" but that it is a good thing, to be studied and done well, and done perhaps more, and more openly, than it is today.

Feeley and Rubin study judicial policy making in the context of prison reform litigation in the United States. They entice the reader with a brief overview of the theoretical issues that provoked their study, then present gripping descriptions of prison reform between 1965 and current times, and then return, at a slower, more reflective pace, to place the prison reform story in a theoretical context. Their structure works at capturing readers, and I follow their general strategy here.

The first three short parts of this review present the core of Feeley and Rubin's book. Part I provides an overview of the theoretical issues raised by judicial policy making. Part II recounts the reform of Arkansas prisons by federal courts between 1965 and 1982. Part III presents the theory of judicial policy making Feeley and Rubin derive from their case study.

Part IV starts by highlighting a critical distinction between hard and soft judicial policy making. Soft judicial policy making occurs when courts make decisions that cannot be derived easily or directly from some authoritative text. Hard judicial policy making occurs when courts not only assert new fights or doctrines not closely linked to authoritative text but also create and supervise detailed administrative remedies. Feeley and Rubin have written a book only about hard judicial policy making.

Part V then tests the Feeley and Rubin theory of judicial policy making against a dramatic counter-example: the general failure to make policy for criminal defense counsel systems. I argue that there is a close fit between the sorry state of public defense in much of this country and the conditions Feeley and Rubin say should trigger hard judicial policy making. I describe provocative cases from the state supreme courts in Louisiana, Oklahoma, and Arizona that have begun the critical task of reforming indigent defense systems. But in each case, these progressive courts have shied away from hard policy making, and other courts have been reluctant to follow even their cautious first steps toward defense system reform.

With the prison story and the counsel system story in place, the final part addresses the most important theoretical and practical question about judicial policy making: whether courts ought to engage in more judicial policy making than they do today.

1. PRISON REFORM AND ESTABLISHED VIEWS OF JUDICIAL POLICY MAKING

   Why study prison reform? A short and sufficient answer to that question is that it is one hell of a good story--a drama, a legal thriller, an inspirational story, a mystery, an action film, and a period piece all rolled into one. But Feeley and Rubin did not tell the story merely because it is good; they told it because they believe it is an important illustration of the role of modern courts, particularly the policy-making role of modern courts, and through the courts, of the entire functioning of the "modern administrative state."

   Feeley and Rubin address many of the major themes in American law, including questions as basic as the meaning of the "rule of law" in the judicial context and whether we still have a functional federal system (or only a functionally national one). Feeley and Rubin anchor their book, however, to one core thesis: Judges engage in policy making; they do so fairly often; and it is legitimate for them to do so. Feeley and Rubin argue that there are techniques to judicial policy making, much like there are techniques to the more widely accepted roles of judicial interpretation and factfinding, and that these techniques should be acknowledged, studied, and learned.

   But what do they mean by judicial policy making? Feeley and Rubin recognize that by defining the notion of judicial policy making too cautiously, they will say something uninteresting and widely accepted: At times, and perhaps at most times, the nature of legal reasoning is such that judges must rely on understandings or judgments beyond binding texts to reach decisions. Instead, they resort to a strong definition in an effort to stake out the widest possible territory. Drawing on a leading critic of judicial policy making, Ronald Dworkin, they define policy making as "the process by which officials exercise power on the basis of their judgment that their actions will produce socially desirable results."(6)

   According to Feeley and Rubin, when judges engage in policy making they are not merely making decisions necessary to the interpretive enterprise, they are abandoning interpretation. Instead, when making policy, judges are working in a mode closely akin to an executive branch official designing policies or, most closely, an administrator in an independent agency doing a little bit of lawmaking, a lot of implementation, and a little adjudication, all conducted by the same person and all done, roughly speaking, at the same time.

   Feeley and Rubin recognize that judicial policy making, as they have defined it, is widely viewed as a "problem" by legal scholars, "an aberration to be regretted or condemned," and by political scientists as "unprincipled."(7) They also recognize that many judges simply deny the existence of judicial policy making, except in the more limited sense of having social policy "inform interpretation."(8) Feeley and Rubin seek to portray a different view, where judicial policy making is seen "as a separate judicial function with its own roles, its own methods, and its own criteria for measuring success or failure."(9) They argue that this function deserves close study since it belongs "securely in the category" of things that "will continue to exist despite one's disapproval."(10) But Feeley and Rubin seek not only to identify judicial policy making and make the realist argument that it...